WATER LAW AND THE ENVIRONMENT

 Acc to the NWRS of 2004:  SA is located in a predominantly semi-arid part of the world  SA has an ave rainfall of 450mm/a compared to the world ave of 860mm/a  As a result SA’s water resources are scarce and limited. INTRODUCTION

 Based on the aforesaid, SA relies primarily on surface water resources* (urban, industrial and irrigation requirements)  In 2004 the NWRS indicated that of the 19 WMAs in SA, 10 were in deficit and  By 2006 only 6 of WMAs were in surplus  For this reason, the DWA released the IWRP  Aim: to address the water resource situation  Purpose of report: Where water management areas are not currently facing water shortage most will be facing shortage in the absence of appropriate intervention Intro 2

 Until recent: 1.Water law has been developed inappropriately 2.Access to water rights has been to the detriment of the majority of the population  Since SA 1994 however water law was reformed to address: 1.Equitable access of water 2.Gov. to exercise management control over water resources Intro 3

1. Brief History of SA water law (a)The Water Act 54 of 1958 (b)The transition from the Water Act to a new water law 2. The National Water Act 36 of 1998 (a)Water pollution and release of effluent 3. The Water Services Act 108 of 1997 Content Breakdown

4. The National Water Resources Strategy (NWRS) 5. Implementation challenges (a)Over- bureaucratisation of the Act (b)Water rights, the constitutional property clause and compensation for expropriation* (c)The right of access to water and a basic water supply (d)Water quality concerns 6 Conclusion Content Breakdown 2

 When the Dutch Ruled ( )  The common changed (decisions taken by the Supreme Court)  From a position where the State was dominus fluminis (State had the right to allocate water)  To one where riparian rights* were the dominant standard 1 Brief History

 The Water Act was enacted during apartheid, and did not replace the riparian rights system.  This led to the majority of South African’s (black people) being restricted in their access of water.  The Act made a distinction between private and public water 1 (a) The Water Act 54 OF 1956

 Private water: ‘all water which rises and or falls naturally on any land or naturally drains or is led onto one or more pieces of land which are the subject of separate original grants, but is not capable of common use for irrigation purposes’.  Thus, the owner on whose land private water was found had exclusive use and enjoyment of such water, provided, he does not pollute it.  Also, the sale or disposal of private water was prohibited, provided, that the Ministry of Water Affairs grants a permit to do so. Water Act Continues 1…

 Public water: ‘any water flowing or found in or derived from the bed of a public stream, whether visible or not’.  Public stream: ‘a natural stream of water which flows in a known and defined channel, whether or not such a channel is dry during any period of the year and whether or not its conformation has been changed by artificial means, if the water therein is capable of common use for the irrigation on two or more pieces of land riparian thereto which are the subject of separate original grants or on one such piece of land and also on [state] land which is riparian to such stream, provided that a stream which fulfils the foregoing conditions in part only of its course shall be deemed to be a public stream as regards that part only’. * Water Act Continues 2…

 The right to use of public water was divided into three categories: 1.Agricultural purposes 2.Urban purposes 3.Industrial purposes Water Act Continues 3…

 Only the riparian owner had the right to use the water resource with respect to agricultural and industrial purposes  The riparian owner had the right to use all surplus water for the benefit of agricultural and industrial purposes  The use of public water for industrial purposes was subject to a permit.  However, public water could be used for any of the defined categories, provided that such usage was benecial and did not amount to wastage. Water Act Continues 4…

 Ground water: which is found underground could either be public or private. Water Act Continues 5…

 Constitution  S24: Environment.-Everyone has the right- (a)to an environment that is not harmful to their health or well-being; and (b)to have the environment protected, for the benefit of present and future generations through reasonable legislative and other measures… 1 (b)The transition from the Water Act to a new water law

 The right to water is provided for in s27 (1) Everyone has the right to have access to -  (a) ….  (b) sufficient food and water…  (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights. Transition continues 1…

 The new water legislation must be considered within these two rights  This, however, are not the only relevant fundamental rights with regard to access to water.  Others include: s9, s10, s11*  Further, water falls within the exclusive national legislative competence*  This reflects the national importance of water (the state is the custodian of the nation’s water)  Control body for Water: national Dept of Water Affairs and Forestry Transition continues 2…

 Fundamental principles underlying the new Act: 1.Govn. must be the custodian of water resources in order to effectively manage a critical strategic resource 2.All South Africans must have equal access to water 3.The hydrological cycle is a single system 4.International dimensions of SA’s water resources and the rights of neighbouring countries are recognised. Transition continues 2…

 s2: purpose of the Act is to ensure that the nation’s water resources are protected, used, developed, conserved, managed and controlled in ways which take into account, which include the following factors: (a) meeting the basic human needs of present and future generations (b) Promoting equitable access to water (c) Redressing the results of past racial and gender discrimination 2 The National Water Act 36 of 1998

 Act provides that national government is the public trustee of the nation’s water resources  Requires it ‘to ensure that water is protected, used, developed, conserved, managed and controlled in a sustainable and equitable manner, for the benefit of all persons and in accordance with its constitutional mandate’.  The Ministry of Water Affairs and Forestry is responsible to ‘ensure that water is allocated equitably and used beneficially in the public interest, while promoting environmental values’. NWA Continues… 1

 In order to meet these objectives the Act has several innovative features that are departures from past practice  1. CATCHMENT MANAGEMENT AGENCIES -Catchment management must be carried out in acc with the national water resource strategy which det how the nation’s water resources are to be ‘protected, used,developed, conserved, managed and controlled’. -The strategy is intended to set out the ‘strategies, objectives, plans, guidelines and procedures of the Minister and institutional arrangments relating to the protection, use, development, conservation, management and control of water resources within the framework of existing relevant government policy’. NWA Continues… 2

2. WATER RESOURCES CLASSIFICATION SYSTEM -This involves the determination of the class of the water resource and the relevant resource quality objectives -Determination is relevant to the notion of the Reserve, which means: (a) ‘ quantity and quality of water required- to satisfy basic human needs by securing basic water supply, as prescribed under the Water Services Act for people who are now or who will, in the near future, be (i) relying upon; (ii ) taking water from; or (iii ) being supplied from, the relevant water resource: and (b) to protect aquatic ecosystems in order to secure ecologically sustainable development and use of [he relevant water resource: NWA Continues… 3

 Pending a final determination of the Reserve, the Act provides for a preliminary determination, which is a necessary prerequisite for the authorisation of a water use  ‘water use’: widely defined by the Act to not only include ‘use’ of water but also activities that could have an adverse impact on water resources.  ‘Water use’ is defined in s21 NWA Continues… 3

 The Act provides that a person wishing to use water must be licenced to do so, except in three situations-  First exception: uses of water that are likely to have sufficiently insignificant impacts on water resources.  Second exception: applies if the water use is a continuation of an existing lawful use.  Third exception: water use permissible in terms of a general authorisation NWA Continues… 4

3. VARIOUS INSTITUTIONS (a)CMA: to decentralise management form the national Dept to various management areas throughout the country. (b)Water User Associations: not designed to carry out water management functions but to ‘operate at a restricted localised level, and are in effect co-operative associations of individuals water uses who wish to undertake water-related activities for their mutual benefit’. (c)Advisory Committees: performs primary functions NWA Continues… 5

(d) Water Tribunal: handles dispute resolutions : Appeals are heard by the HC 4. ENFORCEMENT -The Act criminalises several activities including failure to comply with the conditions attached to permitted water uses and water pollution. Maximum penalty is a fine OR five years imprisonment. -Compensation is offered by a court to any person who suffered loss resulting from non-compliance of the Act. NWA Continues… 6

 s115- to pollute as an offence  s19- provides for the prevention and remediation of the effects of water pollution by imposing a duty on landowners or persons in control of land on which water pollution threats arise to take all reasonable measures to prevent any such pollution from occurring, continuing and reoccurring. 2 (a) Water pollution and release of effluent

 The Water Services Act works in tandem with the NWA  Main objectives (a),(b)…  To implement these obj, the Act est several water services institutions (water services authorities, water services providers, water services intermediaries, water boards and water service committees) 3. The Water Services Act 108 of 1997

 s3- everyone has the right to access to basic water supply and basic sanitation.  This gives effect to the right contained in 27 of the Constitution  Every water services institution is required to take reasonable measures to realise these rights. The Water Services Act Continues…1

 Strategy is est ito s5 of the Act  Revolves around three fundamental obj of managing SA’s water resources:  1….  2….  3…. 4. The National Water Resource Strategy (NWRS)

 Chap 3 (Part 2)- deals with authorised (licensing) water use  Chap 4- water pricing and financial assistance -Part 5: Water Management Institutions -Part 6: addresses Monitoring and Information -Part 7: disaster management (particularly wrt dam safety, floods and droughts and water pollution) -Part 8: ‘Anticipated programme of implementation activities’* -Part 9: functional implications are considered here The NWRS Continues 1…

 Chap 4- Complimentary strategies -Focuses on expertise among practitioners in the water sector, educating and creating awareness among stakeholders and water research. Chap 5- deals with National planning and co- ordination and international co-operational in water management -Recognises that the Act has important interrelationships with other legislation (WSA and NEMA) -Further, that co-operative relations with other institutions, local and international are required for effective implementation of the strategy. The NWRS Continued 2

 The NWRS is a comprehensive and dynamic document that can be changed, depending on changes in circumstance.  It is also required by Statute that this document be reviewed periodically. The NWRS Continues… 3

(a)Over- bureaucratisation of the Act - Likely to be inadequate capacity to carry out the licencing system effectively ( corruption and maladministration) (b) Water rights, the constitutional property clause and compensation for expropriation 5 Key Implementation challenges

 The concern for existing water-rights holders - If the deprivation of water will be lawful and -Whether those deprived of water rights will be compensated? To answer these two questions a consideration of the nature of existing water rights have to be determined. - The requirement of compulsory licencing, could lead to water users’ current allocations extracted from common law and not subject to being reduced or removed. Water rights

 The question is then whether such reduction or removal of an existing allocation is an expropriation of water rights.  In a Harksen v Lane NO case it was held that expropriation consists of a transfer of property to the State.  Also stated that, the measures adopted by the State under the NWA, which may have the effect of reducing or extinguishing existing water allocations, does not involve a transfer of rights to the State, and thus, water rights would not be expropriated. Expropriation

 As held in Harksen v Lane NO -Reduction and removal of existing water rights does not amount to expropriation, therefore, there is no Constitutional to compensation  The NWA, however, does provide for compensation - Ito s22: Water Tribunal will determine th amount payable Compensation

 Based on the aforementioned  The NWA is unlikely to infringe the right of property in s25 of the Constitution Constitutional property clause

 Free Basic Water Programme -Objective: to provide everyone with access to water (c)The right of access to water and a basic water supply

 In 2004, there were three main areas of water quality concerns 1.Salination* 2.Eutrophication* 3.Water abstraction and impoundments 4.Proliferation of alien species* (both plants and animals) 5.Water pollution (created though sewage and waste water systems) (d) Water quality concerns

 Water quality issues are linked with water use, since not only must there be enough water to meet the needs of both humans and the environment, but the quality must be of such that it can sustain those needs. Water quality concerns 1

 As seen, the NWA is a comprehensive and ambitious instrument aimed: -at achieving effective, sustainable management of SA’s water resources and -To ensure not only that all people have sufficient access to a scarce resource but also that there is enough water available to meet environmental needs.  The Act relies on a considerable administrative endeavour which is not capable of being nor intended to be implemented immediately  Thus, we will only be able to appreciate and reap the full benefits of the new legislation several years into the future. 6 CONCLUSION